IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50949
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ISMAEL MUNOZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-96-CR-299-1)
_________________________________________________________________
September 4, 1997
Before KING, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
Ismael Munoz argues that the district court clearly erred in
determining the quantity of drugs attributable to Munoz for
sentencing purposes. Munoz negotiated to sell about 1000 pounds
of marijuana to undercover agents and was arrested after he
delivered the first installment of 146 pounds. He was convicted
and sentenced for possession of the 146 pounds and conspiracy to
possess with intent to distribute 1000 pounds. Munoz argues that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
he should not have been held accountable for 1000 pounds of
marijuana because he did not have the capacity to acquire that
amount of drugs and that his statements that he could obtain 1000
pounds were merely “puffery.” He argues that this fact was
corroborated by the trial testimony of his coconspirator. The
district court found, however, that “there was sufficient
evidence to support the indictment theory that the defendant
conspired to deal with some 800 to 1,000 pounds of marijuana, at
least.”
The district court’s finding concerning the quantity of
drugs attributable to the defendant is a factual finding reviewed
for clear error. United States v. Vine, 62 F.3d 107, 109 (5th
Cir. 1995). The application notes to the applicable portion of
the Sentencing Guidelines provide that the agreed-upon quantity
is generally to be used in determining the offense level, except
if
the defendant establishes that he or she did not intend
to provide, or was not reasonably capable of providing,
the agreed-upon quantity of the controlled substance,
the court shall exclude from the offense level
determination the amount of controlled substance that
the defendant establishes that he or she did not intend
to provide or was not reasonably capable of providing.
U.S. SENTENCING GUIDELINES MANUAL § 2D2.1 application note 12 (1995)
(emphasis added). Application note 12 was amended in 1995 to
clarify that the defendant has the burden of proving any amount
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that should be excluded from the calculation of the offense
level. See id. app. C, amend. 518.
We have reviewed the record, including the testimony of
Munoz’s coconspirator, the presentence report, and the briefs of
the parties, and affirm the district court’s determination of the
quantity of drugs attributable to Munoz. The testimony of
Munoz’s coconspirator, as well as the other evidence presented at
trial and in the presentence report, reflect that Munoz was
reasonably capable of selling the undercover agent 1000 pounds of
marijuana, albeit “little by little.” That he was arrested with
only 146 pounds and that he intended to acquire the full amount
in small increments does not establish that he was not reasonably
capable of providing the 1000 pounds. See id. at 110 (“The fact
that Vine failed in supplying the chemicals necessary to produce
12 pounds [of methamphetamine] is not evidence that Vine did not
intend to supply the needed chemicals or that he would not be
able to do so in the near future.”). Therefore, Munoz did not
meet his burden of establishing that he was not reasonably
capable of providing 1000 pounds of marijuana, and the district
court did not clearly err in basing Munoz’s offense level on that
amount of controlled substance.
AFFIRMED.
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